R. V. MANJANATHA

R. V. MANJANATHA1995 — In January, anesthesiologist Channagirie Manjanatha pleaded guilty to criminal negligence in Regina, Saskatchewan, for leaving the room for 15 minutes during surgery to make a phone call, thus leaving an oxygen machine unmonitored, which resulted in brain damage to the patient.

R. V. MANJANATHA

CA94154 Date of Judgment: November 4, 1994 (orally) THE COURT OF APPEAL FOR SASKATCHEWAN

This application for a stay of proceedings under an indictment in Queen’s Bench came before me on short notice late yesterday afternoon. After hearing argument I adjourned my decision until this morning so that I could consider the submissions and authorities put forward by counsel. Since I appreciate their need for an early decision I now deliver brief reasons. At the outset, I wish to express my appreciation to counsel for the manner in which they addressed this matter.

A brief word about the procedural history of this matter is in order. On March 23, 1993 Dr. Manjanatha was charged under s.221 of the Criminal Code. On April 27, 1993 he elected trial by judge without a jury in Queen’s Bench.

Following a preliminary hearing which concluded on October 22, 1993 he was committed for trial at the next non-jury sittings of the Court of Queen’s Bench at the Judicial Centre of Regina.

On September 26, 1994 an indictment dated September 20, 1994 was filed in Queen’s Bench with the Attorney General’s direction under s.568 of the Criminal Code that Dr. Manjanatha be tried by a Court composed of a judge and jury. With this turn of events, learned counsel for Dr. Manjanatha applied to the trial judge for an order quashing the Attorney General’s direction under s.568 and for a further declaration that Dr. Manjanatha’s “Charter” right to trial by judge without a jury was infringed. Accordingly he sought a declaration under s.24(1) of the Charter that he was entitled to trial by judge without a jury.

In written reasons filed on November 2, 1994 the learned trial judge dismissed this application for relief. He held that s.7 of the Charter did not grant Dr. Manjanatha the constitutional right to a non-jury trial. He also rejected Dr. Manjanatha’s contention that in the circumstances of this case the invocation of s.568 of the Criminal Code constituted an abuse of process.

Dr. Manjanatha immediately appealed this ruling on the following grounds: 1. That the learned Trial Judge failed to properly consider whether s.568 of the Criminal Code violates s.7 of the Charter of Rights and Freedoms. 2. That the learned Trial Judge failed to properly consider whether in the circumstances of the case the direction by the Attorney General constituted an abuse of authority. 3. That the learned Trial Judge failed to properly consider whether the Crown’s delay in the exercise of its direction constitutes an abuse of process.

On November 3, 1994 the learned trial judge rejected Dr. Manjanatha’s application for an adjournment of his jury trial set for November 7, 1994 pending the hearing and final disposition of his appeal.

This application was accordingly brought before me for an order staying all proceedings under the indictment in question pending the hearing and final disposition of the above “appeal”.

The learned trial judge rejected Dr. Manjanatha’s contention that the Attorney General’s direction under s.568 was constitutionally infirm. Accordingly I am asked to maintain the status quo by enjoining proceedings under the indictment which is now before the Court of Queen’s Bench. Since judicial intervention was denied in Queen’s Bench the order sought, if granted, will have the effect of altering the legal status quo. This factor is all the more significant where I am asked as a single judge of the Court to delay a scheduled criminal trial fixed for November 7, 1994 and in effect, fragment the proceedings on the footing that the Attorney General’s direction under s.568 raises an issue that should go through the appeal process at this stage of the trial.

Assuming, without deciding, that I have jurisdiction to make such an order, I decline to do so. As I see it, the relief sought from me as a single Chambers judge is somewhat extraordinary in that I am asked to suspend the operation of a presumptively valid indictment and override the discretionary order of the trial judge refusing to grant an adjournment of the trial in these circumstances. Since Dr. Manjanatha’s claim to relief is not indisputably clear, such a decision in this case is best left to the Court’s determination after the trial has been completed. Furthermore, it would be difficult for the Court to pass upon the abuse of process issue at this stage without the benefit of a full trial record.

I accordingly dismiss the within application, but emphasize that the points raised in the pending “appeal” are preserved for any future appeal that may arise after trial. In this way all matters or issues can be dealt with at the appellate level on the basis of the entire trial record in Queen’s Bench where all of the relevant issues will have been considered in one forum rather than litigated piecemeal. See, for example, Bank of Nova Scotia v. R., 24 Sask.R. 308 (C.A.). Furthermore, given the Crown’s position, an acquittal will likely render the issue moot in these proceedings.

In this application I have considered Dr. Manjanatha’s vigorous contention that a “jurisdictional” issue is raised and accordingly, this should be viewed as an exception to the general rule. In the circumstances of this case, these “jurisdictional” aspects of the argument have not persuaded me that proceedings under the indictment should be suspended. Accordingly, I have not found it necessary to pass upon the issue whether any right of appeal exists at this stage.

N.G. Gabrielson, Q.C. for the applicant G.G. Mitchell for the respondent

JUDGMENT MAURICE J. November 1, 1994

The accused was charged with causing bodily harm by criminal negligence contrary to s. 221 of the Criminal Code, R.S.C. 1985, c. C-46. On April 27, 1993, he elected to be tried by judge without a jury. On October 22, 1993, after a preliminary inquiry the accused was committed to stand trial. On September 20, 1994, the Attorney General directed, pursuant to s. 568 of the Criminal Code, that the accused was to be tried by a court composed of a judge and jury.

The accused alleges that this direction denied or infringed his rights under s. 7 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11. He applies for a declaratory judgment, pursuant to ss. 24(1) that he is entitled to be tried by a judge without a jury.

Section 568 of the Criminal Code reads:

568. The Attorney General may, notwithstanding that an accused elects under section 536 or re-elects under section 561 to be tried by a judge or provincial court judge, as the case may be, require the accused to be tried by a court composed of a judge and jury, unless the alleged offence is one that is punishable with imprisonment for five years or less, and where the Attorney General so requires, a judge or provincial court judge has no jurisdiction to try the accused under this Part and a preliminary inquiry shall be held before a justice unless a preliminary inquiry has been held prior to the requirement by the Attorney General that the accused be tried by a court composed of a judge and jury.

The accused argues that s. 568 denies his rights under s. 7, and if it does not, the Attorney General’s direction was exercised in a manner that infringed his rights under s. 7, and if the Attorney General’s direction was not exercised in a manner that infringed his rights under s. 7, the delay in directing trial by judge and jury infringed his rights under s. 7.

The accused bears the burden, on the balance of probabilities, of persuading the court that his Charter rights have been denied or infringed: R. v. Collins, [1987] 1 S.C.R. 265.

Section 7 of the Charter of Rights and Freedoms reads:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Section 24(1) of the Charter of Rights and Freedoms reads:

24(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

The accused states that s. 7 gives him the right to be tried by a judge without a jury, and s. 568 denies him that right. I cannot agree. “There is no constitutional right to a non-jury trial.”: R. v. Turpin, [1989] 1 S.C.R. 1296 at 1321 per Wilson J.

The accused states that the Attorney General exercised his discretion in a manner not in accordance with the principles of fundamental justice, contrary to s. 7. The accused did not adduce any evidence of improper motive or bad faith on the part of the Attorney General. Absent evidence of improper motive or bad faith, the court will not interfere with the exercise of prosecutorial discretion: R. v. Power (1994), 89 C.C.C. (3d) 1 (S.C.C.).

The accused states that the Attorney General’s delay in directing trial by judge with jury is an infringement of the right of due process guaranteed by s. 7. I agree that delay in making a direction, under s. 586, which results in an unfair trial for an accused can be addressed under s. 7: R. v. Potvin, [1993] 2 S.C.R. 880. However, the accused did not adduce any evidence showing that the Attorney General’s delay would result in an unfair trial.

This appeal calls for a determination of the proper sentence to be imposed upon the appellant, an anaesthetist who has pleaded guilty to criminal negligence under s. 221 of the Criminal Code.

Both the Crown’s counsel and appellant’s counsel concede that this Court has not adopted the laissez-faire or negative approach to the review of sentences and does not subscribe to the “rubber stamp” theory. Therefore no high degree of deference is required to be given the sentence of six months imposed by the trial judge. This Court must therefore while having regard for the sentence imposed by a trial judge review the facts and relevant considerations to determine what constitutes a fit sentence. (see R. v. Morrissette (1970), 75 W.W.R. 644; R. v. Wenarchuk (1982), 67 C.C.C. (2d) 19 at 174 and R. v. Dunn (1995), 95 C.C.C. (3d) 289 at 297 (S.C.C.)).

The factual background discloses a very tragic result to a fairly routine surgical procedure. On February 23, 1991, Ryan Braumberger was being operated on as a consequence of a broken leg and the appellant was the anaesthetist. The anaesthetic equipment being utilized had four safety systems built into it. Two of these systems were not in operation, one of which a nurse had suggested should be utilized but the appellant did not think it was necessary and it was never hooked up. One of the two safety systems which was in use was designed to give a high pitched warning sound when it was not operating properly and the other a warning that was rather less noticeable.

Shortly after the youth had been anaesthetized, the appellant left the operating room to place a phone call and said to the circulating nurse “I am leaving” without any further instruction. While he was away, the circuitry became disconnected and the high pitched warning system failed to function while the other system went unnoticed by those involved in the surgery. When the failure was noticed by the circulating nurse, the appellant was quickly summoned but the oxygen deprivation had existed for a sufficient period of time to create irreversible brain damage to the patient. The result is the youth never regained consciousness and in all probability will remain in a vegetative state for the balance of his life. The appellant, when making out his medical report, falsely indicated he had been out of the operating room but in sight of the patient at all times. He made the same false statement to Ryan’s family following the surgery.

The College of Physicians and Surgeons conducted an inquiry and as a consequence the appellant pleaded guilty to a charge of conduct unbecoming a member of the profession, and was suspended from practice for six months and required to upgrade his skills. This he did and was subsequently reinstated by the College and is now practising his speciality in the Lethbridge area. A civil action was taken on behalf of the youth and a settlement reached involving payment of damages by or on behalf of the appellant and the hospital.

The police also conducted an inquiry and as a consequence a charge of criminal negligence was laid under s. 221 of the Code. The appellant at first pleaded not guilty and the above facts were those as presented at the preliminary hearing at which he was committed for trial. At trial, the appellant changed his plea and the focus turned to what constituted a fit sentence. The trial judge rendered a carefully considered judgment indicating the nature of the offence called for a period of incarceration and imposed a sentence of six months. The appellant contends that the sentence is too severe.

Decisions of this Court, at least since R. v. Morrissette (1970), 75 W.W.R. 644, have accepted there are four paramount factors to be considered in determining a fit sentence. They are: (1) punishment; (2) deterrence; (3) removal of the offender from the public for the latter’s protection; and (4) reformation and rehabilitation of the offender. Without repeating the full scope of the appellant’s submission, it was contended society gained no advantage from requiring more punishment than the circumstances had imposed upon the appellant apart from any sentence; deterrence had made its full impact not only on the appellant but the entire profession; imprisonment was not needed to protect the public; and all had been done that was needed to reform and rehabilitate the offender. That being so, to now impose imprisonment serves no societal advantage nor does it provide anything of a positive nature for the appellant. It can therefore only be described as societal vengeance, which is made even more unacceptable by the appellant’s current state of ill health.

The appellant’s position is supported by the fact that almost every precedent authority that exits in either Canada or England relating to a medical’s doctor negligence does not involve a sentence of incarceration. In England it appears that at least until recently, medical doctors have been sentenced to up to six months in prison with the sentence suspended for a period of one year so that no time is served if they continue good behaviour. The only similar decision in Canada was said to be R. v. Lockyer (1980), 13 C.R. (3d) 185 in which a nurse in Newfoundland was granted a suspended sentence for failing to check blood types before a surgical blood transfusion which resulted in the death of the patient.

Obviously, there exists a judicial viewpoint that a medical doctor who falls to be convicted of an offence of criminal negligence need not be imprisoned as that can be nothing more than societal vengeance given the nature of the severe consequences that flow from a conviction of such an offence, quite aside from any sentence judicially imposed.

All of this represents a compelling argument, for it is hard to fashion a reason to support a sentence of imprisonment which serves neither the interest of society, in the sense it is then deprived of the use of the skills of a professionally trained person; nor the interests of the guilty person, in the sense the person has already suffered extensively and is not at risk of reoffending. Nonetheless, the offence of criminal negligence is one of those that frequently involves members of society who do not have a previous criminal record. The offence deals with situations in which the accused has, sometimes by momentary error or misjudgment acted so negligently that criminal consequences are involved. None of us can be certain we shall never face such a charge. It is not unusual that these situations have involved those who by virtue of their position or professional skills are devastated by the event quite aside from any criminal sentence that is imposed. That situation should properly be factored into the sentence, but it only carries the offender so far. It cannot be accepted so completely as to create one penalty for the more highly trained or successful who suffer more extensively as a result of the conviction and another for those who have less to lose. This factor cannot be accepted as sufficient to avoid imprisonment where the negligence is viewed as extreme and the consequences severe. Indeed the cases are peppered with instances where professional people have been called upon to endure the consequences of their crime.

This then calls for a review of the nature of the appellant’s conduct which constituted the offence. The operation on the youth was not going to be lengthy; the youth had just been anaesthetized and his condition hardly even stabilized when the appellant left to make a purely personal telephone call; virtually no arrangements were made to alert other staff of his absence or the concerns that his absence represented; he was absent for longer than was reasonable and to some degree falsified his report to protect himself at the conclusion of this surgery. All of this places his conduct much beyond the range of pure mischance, or, as the trial judge expressed it, “as being explained away by a combination of unfortunate circumstances”.

There is no denying that professionals of this nature suffer very significantly quite beyond anything the sentencing process may impose. That may well be good reason to impose a lesser criminal sanction, but for other professions, of which the legal profession is an example, it has not been seen as a sufficient justification to warrant the failure to impose penal sanctions, particularly when the conduct is at the more serious end of the range. Nor is this the first occasion in which it has been apparent that the sentence of incarceration has significant side effects and tragic consequences upon the family. That seems to be an inevitable byproduct of almost all sentences which society has not yet found the means to eliminate. Finally, when considering the degree of negligence and the resultant consequences, it is difficult to believe that the public’s respect for the administration of justice can be enhanced or even maintained by imposing a fine or probation in this case.

Having considered the well reasoned presentation made by the appellant’s counsel, we are nonetheless of the opinion the trial judge was correct in assessing a limited period of imprisonment as a fit sentence. In the result, the appeal is dismissed.

DATED at the City of Regina, in the Province of Saskatchewan, this 21st day of June , A.D. 1995.